Civil lawsuits have a time limit, or statute of limitations, on when you can file your suit in court. Although you may have notified a person or entity such as an insurer about a claim, your ability to collect on that claim will be permanently barred if the time limit or statute of limitations runs out on actually filing it in the appropriate court. For legal malpractice claims in Massachusetts, that time limit is 3 years.
When Does the Statute of Limitations Begin?
However, it is not always easy to determine when the statute of limitations begins to run in a legal malpractice claim. In an injury case like a car accident, the time begins to run from the date of the injury in most cases. For a legal malpractice claim, it is when you were injured or harmed by the attorney’s negligence or initially learned of it, “knew or should have known” they say. There is also the “discovery rule” whereby the statute begins to run when the claimant could have learned of the harm through the exercise of due diligence.
This begs the question of just when does the “harm” occur? For example, if your attorney failed to call a key witness at trial who you allege led to the court dismissing your claim, then the statute or time would begin on the date the court issued the dismissal. However, if your attorney continued to represent you, such as on an appeal, then the statute may not begin to run until the attorney’s representation terminated. Even then, it may not begin if the attorney took steps to actively conceal his or her malpractice from you.
Because of the complexity of these claims, you need to consult with and retain an experienced legal malpractice attorney.
Defenses to Legal Malpractice Claims
There are a number of defenses in legal malpractice claims that can make it very difficult for you to prevail.
Failure to Prove the Underlying Case: The most common defense is found in cases where your attorney neglected to file your claim in the appropriate court within the time allowed. This means that you cannot just file the claim in any convenient court, but the one that has jurisdiction over your claim. It then becomes your burden to prove at this point that the underlying claim had merit and that you would have likely recovered compensation had the matter gone to trial. In a car accident case, you have to prove that the responsible party was negligent, that your injuries were caused by that party’s negligence, and that you sustained damages such as lost earnings, medical expenses, emotional distress, and pain and suffering. In other words, you have to show that had the attorney done his job competently, you would have recovered compensation. For some cases, this might require a trial.
Attorney-Client Relationship: Another defense concerns the attorney-client relationship. In a corporate matter, the attorney will generally represent the corporate entity rather than individual officers and directors or shareholders. The defense will be that since you were not the actual client, you cannot claim malpractice from that attorney’s incompetence. In this scenario, you have to demonstrate that you were the individual who was supposed to benefit from the representation and ultimately lost money or property as a result of the attorney’s malpractice.
Failure to Prove Damages: In any legal malpractice claim, you have the burden of proving damages. This can be tricky in business matters where the advice, actions, or failure to act by your attorney was the alleged cause of the business’ failure or losses. If you cannot adequately prove any actual and not speculative damages despite the obvious bad advice or inaction of your attorney, then you will not recover. Your legal malpractice attorney may have to retain an expert in business matters to testify that the attorney’s failure to adhere to a certain standard of competency directly led to your business losses. Hard evidence is required in such cases which may not be easy to obtain or to show without being deemed speculative.
Even if you prove damages, can you prove that the money damages were collectable in the underlying case? Was there sufficient insurance or a deep pocket?
Failure to File on Time: An attorney accused of malpractice might also argue that you failed to bring your malpractice claim on time, especially if you did not uncover the alleged malpractice within the 3-year period of time and a court finds that you should have if you had used due diligence.
Filed in the Wrong Court
As indicated above, you must have filed your claim in the court that has jurisdiction over your claim. For example, if you filed your claim in federal court that lacked jurisdiction and the statute has run, then you likely will be barred from filing it in the proper court.
Retain a Legal Malpractice Attorney from Burns and Jain
As you can see, legal malpractice claims are a different animal from the usual tort or injury case and present many complex issues. If you feel that your attorney failed to adequately represent you, it may or may not constitute malpractice, but it is essential that you do not hesitate to contact our office to discuss your possible claim. Call our office at (617) 227-7423 for a free consultation about your legal malpractice claim.